IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA

LAND CASE REVISION NO. 02 OF 2021

(Arising from the Ruling of District Land and Housing Tribunal for Geita at Geita in Misc.
Application No. 115 of 2020]

MANONI MALAWI MALANDO....................................................... APPLICAANT

VERSUS

CHACHA MWITA WAMBURA........................................................RESPONDENT

RULING

Date of Last Order: 30/08/2021

Date of Ruling: 30/09/2021

F. K. MANYANDA, J

In this application for revision, this Court is been moved under section

79 of the Civil Procedure Code [Cap. 33 R. E 2019] to revise the records,

proceedings and the ruling of the District Land and Housing Tribunal (DLHT)

for Geita dated 22/01/2021 in Misc. Application No. 115 of 2020. After

revising, the Court to satisfy itself as to the correctness, legality, regularity

and proprietness of the said ruling.

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 The background of this matter as it be gleaned from the affidavit,

counter affidavit and the record is that the Respondent, Chacha Mwita

Wambura, purchased a piece of land from the Applicant.

The Respondent paid the purchase piece, but when the land was

measured fell short of the agreed area of 60 acres.

Hence, a dispute arose, whereas the Respondent filed Land Application

No. 49 of 2020 claiming for ownership of the land he purchased.

After filing the land suit, he subsequently filed Misc. Land Application

No. 115 of 2020 applying for interim injunctive orders to prevent the

Applicant, his agents or any person claiming under the Applicant, from taking

possession, transferring, entering into or doing an act in the suit land

pending determination of the main suit.

The trial DLHT granted the injunctive orders and ordered

temporary freezing of the bank account into which the Respondent paid the

money for maintaining status quo.

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 The Applicant, who was the Respondent in Misc. Land Application No.

115 of 2020 and against whom the temporary injunctive orders were issued

been aggrieved, opted at making the instant application seeking for orders

quashing setting aside the said temporary injunction.

«

At the hearing, the Applicant was represented by Mr. Dutu Chabwa,

learned Advocate and the Respondent enjoyed the service of Mr. Kabula

Benjamini, learned Advocate.

The Counsel for the Respondent raised a preliminary objection to the

hearing of the application on point of law that the application has been made

pre-maturely and that the same contravenes the law which forbids revision

on orders of interim nature.

This Court directed hearing on both, the preliminary objection and the

application in order to avoid unnecessary wastage of time.

Mr. Kabula for the Respondent started the ball roling. He argued that

the application against an interlocutory order which was given by the DLHT

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in Misc. Land Application No. 115 OF 2020 from Land Application No. 49 of

2020, still pending in the DLHT.

He was of the views that the DLHT gave temporary injunctive orders

pending determination of the main Application. Being temporary orders, the

same are interlocutory in nature not subject to appeal nor revision as the

same are forbidden under section 79(2) of the CPC.

MR. Kabula was of a further view that the rights of the parties were

not finally determined in Misc. Land Application No. 115 of 2020, but rather

preserved pending determination of the main land application which was to

determine their rights.

He cited the case of UDSM vs Silvester Cprian and 210 others

[1998] TLR 175 where the Court of Appeal held that interlocutory

proceedings are those which do not determine the rights of parties. He

prayed the objection to be sustained and application struck out with costs.

On his side Mr. Chebwa for Applicant submitted conceding that the

DLHT gave interim orders. He mentioned the orders as been restraint to the

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Applicant from interfering with the suit land. In addition he was ordered to

furnish security or costs or deposit an evaluated certificate of Right of

Occupancy and in addition his bank account was frozen.

Mr. Chebwa argued that the issue of furnishing security for costs was

illegal in that it is issued under order XV of the CPC which concern foreigners.

Moreover, the Counsel argued that the main Land Application is a summary

suit and the prayer is about ownership of the land in dispute and return of

any excess value, then, he submitted that, then the orders had the effect of

determining the rights of parties finally. He was of the views that this matter

falls out of the scope of limitation under section 79(2) of the CPC. He prayed

the objection to be overruled.

In rejoinder, Kabula re-interated his submission in chief and added that

the order for freezing the bank account and furnishing of security for costs

were requested as separate and ex-parte prayer.

After the argument on preliminary objections, the Court invited the

parties to address it in respect of the application for revision.

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 This time it was Mr Chebwa who started the ball roling by submitting

that they are challenging the ruling because it gave some relief orders which

were not prayed for in Miscellaneous Land Application No. 115 of 2020 and

that such orders have the effect of determining the main suit to the finality.

He started by attacking the last order of furnishing of security for costs.

He was of the views that the chairperson wrongly exercised his powers by

raising and deciding the same during ruling without affording the parties

chances to be heard. He added that the prayer was not only argued by the

Respondent during submissions but also was not borne out in the chamber

summons. He was of the views that the chairperson was not formerly

moved. He cited the case of Attorney General (AG). Vs W. K Butambala

[1993] TLR 46 at page 52.

The Counsel argued further that the chairperson wrongly invoked the

issue of security for costs which is only invoked in either to a non resident

person or stay of execution. He contend that the Applicant was condemned

unheard. He prayed for revision be granted.

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 Then the Court put to task Mr. Chebwa to address it on propriety or

otherwise of invocation of revision instead of appeal. The Counsel submitted

that they chose revision because the complaint is about irregularities on the

face of the record. He argued that the orders were given in the application

but the same have the effect of determining the rights of parties; hence they

may be subject to appeal, review or revision.

On his side Mr. Kabula submitted that there were prayers for depositing

of security for costs in the chamber summons ex parte. He added that there

was a clause of prayer for any other orders, hence the chairperson was

correct to grant security for costs.

When tasked by the Court on the issue of which between appeal and

revision was appropriate in this matter. Mr. Kabula replied that the orders

sought to be revised are not appealable, hence use of revision is the

appropriate way.

In rejoinder Mr. Chebwa argued re-iterating his submissions in chief

and added that the prayers under the umbrella of "any other order" are not

tenable in law.

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 These were the submissions by the Counsel for both sides. The issue

to determination in this matter is whether the application is proper before

this Court, the sub issue is whether the impugned orders been interlocutory

in nature are capable of been challenged by way of revision.

The term "interlocutory order" is defined under the Black's Law

Dictionary 8th Edition by Bryan A. Garner at page 1130 as follows: -

"An order that relates to some intermediate matter in the case,

any order other than a final order."

Judicially interpretation of the term interlocutory order in our

jurisdiction is found in the case of Israel Solomon Kivuyo vs Wayani

Langoyi and Maishooki Wayani [1989] TLR 140 where the Court of

Appeal of Tanzania defined what amounts to interlocutory order by quoting

from JOWITTS' Dictionary of Law 2nd Edition at page 999 as follows: -

"An interlocutory proceeding is incidental to the principle

object o f the action, namely thejudgment. Thus interlocutory
applications in an action include all steps taken for the purpose
o f assisting either party in the prosecution o f their cases,
whether before or after judgment; or o f protecting or

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 otherwise dealing with the subject matter o f the action before
the rights o f the parties are finally determined; or o f executing
the judgment when obtained. Such are applications for time
to take a step eg deliver a pleading' for discovery, for an
interim injunction, for appointment o f a receiver, for obtaining
a garnishee order etc..."

My visit to the provisions of section 79(2) of the CPC makes it clear

that it bars applications for revision in respect of any preliminary or

interlocutory decision. It read: -

"79(2) Notwithstanding the provisions o f subsection (1'), no

application for revision shall He or be made in respect o f any
preliminary or interlocutory decision or orders o f the Court
unless such decision or order has the effect o f finally
determining the suit."

At it can be gleaned from the authorities and provisions of the Law

cited above, in this case, the application is made in order for this Court to

revise an order of the trial DLHT. That order was issued in order to restrain

the Appellant from taking possession, transferring, entering or otherwise

doing any act that suggest possession of land. This order was given as a

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temporary order pending determination of the controversy between the

parties which was pending in the DLHT.

In my understanding the order was intended to preserve the status

quo of the parties, as far as the piece of land involved.

However, in this matter as explained above, the Respondent had

already made payments in respect of the same piece of land. The

controversy is on the amount paid relative to the size of the piece of land.

This means that handing over of the piece of land has not yet materialized.

It means further that both the piece of land is still in the hands of the

Applicant and the money paid are also in the bank account of the Applicant.

If no interim order is issued, the Applicant has with it all.

Seen such an undesirable situation as far as justice is concerned, the

DLHT issued an interim order also requiring the Applicant to furnish security

for costs or deposit a certificate of Right of Occupancy with value half of the

claimed money in order to release the Applicant's account which was frozen

ex parte.

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 In my opinion, this second order is also a temporary one, that if the

Applicant furnishes the security, his bank account which is frozen for the

same purpose, will be released. All is about security of the money paid by

the Respondent for the piece of land in controversy; and both are intended

to preserve the parties status quo pending determination of the main suit.

The Counsel for the Applicant contend that the orders are subject to

revision because they have the effect of finally determining the rights of

parties in this matter. I don't agree with him. I say so because if examined

the circumstances of this application in two situations one can see that the

orders do not have the effect of finally determining the suit, the reasons are

as follows:-

First, if the orders were not given, in the circumstances of this matter

it means both the piece of land and the money would be in the hands of the

Applicant. Second, if both orders are given, means that the piece of land

and the money is neither in any ones hands.

It can be seen that the former situation, is favourable to the Applicant

and prejudicial to the Respondent; but in the latter situation no one looses

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because both parties are at par, each ones right will be known after

determination of the controversy in the main suit.

Due to these reasons, I find that the orders have no effect of

determining of rights of the parties to finality.

Now be as it may, as explained above, the orders complained of are

temporary and the application intends this Court to revise the same.

However, as explained also above, section 79(2) of the CPC forbids

applications for revision in respect of interlocutory orders; save where the

same have the effect of finally determining the matter. I have already said

the impugned orders do not have the effect of finally determining the

controversy.

Therefore, I hold that the main issue that, whether this application is

proper before this Court is answered in negative; thus this Court has no

jurisdiction to entertain the same. The application at hand is legally

incompetent, the preliminary objection is hereby sustained.

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 Having found that the preliminary objection has merit and the same

disposes of the application, I don't see need of discussing the same to its

merits.

Consequently, I do hereby strike out the application for been

incompetent and improperly before this Court. Costs will be borne out by

the Applicant. Order accordingly.

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